Scottish Court of Session Decisions

[1] This application for a new trial relates to an accident suffered by the pursuer at work on 28 February 1996, on which date the pursuer was employed by the defenders as a nursing assistant at Cameron Hospital, Cameron Bridge, Fife. The pursuer at the time of her accident was 41 years old and had been employed by the defenders as a nursing assistant for about six years. Between about 10 and 11 a.m. on the said date the pursuer, as part of her duties, was assisting an elderly patient, Sarah Davis, to walk from her bed to the top of the ward for her breakfast. Sarah Davis was probably in her 90s but was at least in her 80s. She weighed about 641/2 kgs. and was three or four inches taller than the pursuer, who was about 5 feet 1 inch in height. The pursuer weighed about 8 stone. In order to assist her patient the pursuer had linked her own right arm through the patient's left arm. As the pursuer and the patient walked away from the patient's bed, and had travelled 5 or 6 feet, the patient started to stumble to the right. The pursuer thought that the patient was going to fall and that she would be pulled down with her.

[2] At the time of the incident we have been describing there was only one other member of the defenders' staff relatively close to the pursuer and her patient. That person was Amy Thomson. Amy Thomson who was 60 at the time of the proof had been employed by the defenders as a staff nurse for 37 years and at the time of the accident was 58 years old. The pursuer said when she gave her evidence in relation to the patient (page 10D):

In the circumstances she was confronted with, the pursuer asked Amy Thomson to help her. Amy Thomson was at the time only about 8 feet away. It is clear that Amy Thomson came quickly to the pursuer's aid. Thereafter the pursuer felt that she was being pushed to her left. She fell and injured her left arm which she had stretched out in an effort to save herself.

[3] The pursuer blamed Amy Thomson for the accident and raised an action for reparation in the Court of Session in which she claimed £40,000 damages. After sundry procedures the pursuer was allowed issues.

[4] The pursuer's case, as set out in the closed record, was to the effect that the said accident had been due to the fault and negligence of Amy Thomson. It was averred that the accident had occurred because, as Amy Thomson ran towards the pursuer and her patient to assist them, she did not keep a proper lookout. As a result she tripped on the patient's feet which caused her to stumble. Amy Thomson accordingly fell onto the pursuer and knocked her to the ground, thus causing her injury. In their defences the defenders denied that Amy Thomson in fact fell over the patient's feet.

[5] The case went to jury trial on 19 January 1999. At the end of the pursuer's case counsel for the defenders moved that the case be withdrawn from the jury on the basis that there was insufficient evidence to support it. However, the Lord Ordinary rejected this contention. The defenders led no evidence and on 21 January 1999 the jury, by unanimous verdict, answered the issue for the pursuer in the affirmative. They awarded the pursuer total damages of £29,157, of which the sum of £19,100 was in respect of disadvantage to her on the open market attributable to her injuries.

[6] At the application for a new trial before us the thrust of the defenders' submissions was that there had not been sufficient evidence in support of the pursuer's case to establish her entitlement to damages. The evidence relevant to the question of fault in the case had been confined to the evidence of the pursuer herself and that of Amy Thomson (who had been called by the pursuer as a witness). The pursuer had described the events leading to the accident as we have set out above. The pursuer did not say that Amy Thomson had tripped over the patient's feet or indeed that she had tripped at all. From her own knowledge the pursuer did not know what had happened to the other women involved when she had fallen (page 17B). She indicates that she was told there had been "a pile up".

[7] In giving her evidence the witness Amy Thomson at no time accepted that she had tripped over the patient's feet. She claimed that she was working about 8 feet away from where the pursuer was assisting her patient. The pursuer then called out "Amy, she's going". Amy Thomson thought that the patient was going to fall and that she had to try and stop her doing this. At that point the patient was moving backwards. Amy Thomson said that she approached the patient's right side which was unsupported. She thought that she only touched the patient but that the patient may have pulled her backwards. In any event she considered that she was likely to fall on top of the patient so she jumped backwards. The next thing that occurred was that the pursuer and the patient were on the floor. She too was "more or less" on the floor (51E).

[8] An accident report (No. 10/1 of process) was shown to the witness. From the terms of that document it appears that the accident was reported by staff nurse Katie McKnight to the nurse in charge of the ward (Elizabeth Watson) shortly after the accident occurred. Amy Thomson accepts that she probably spoke to Nurse McKnight after the accident, although she could not remember this clearly. However, she did not think that she was present when the accident report was filled out. The account of the accident set out is to the effect that the pursuer was walking the patient when the latter staggered and overbalanced backwards. It reports that Staff Nurse Thomson came to help the patient and the pursuer and in so doing the three of them fell to the floor. Amy Thomson on being pressed accepted that the material in the report must have come from her.

[9] Number 10/2 of process was put to the witness. This is a report which Amy Thomson made out in her own handwriting. The report purports to have been completed on 1 March 1996. Again it is suggested that the incident happened after the patient had appeared to stagger and began pulling backwards. It is said that after Amy Thomson had responded to the pursuer's cry for help "we were all pulled onto the floor". It was put to Amy Thomson that in the course of explanations she had given to various investigating parties she had said that she tripped over the patient's feet, but in giving her evidence she both denied that this was how the accident happened and indeed that she had ever said this.

[10] In addressing us in support of the defenders' application for a new trial, counsel for the defenders contended that if we were unanimously of the view that the evidence was insufficient to support the verdict in the case we should set aside the verdict and absolve the defenders. If there was clearly insufficient evidence to support the verdict in favour of the pursuer then there would be no purpose in allowing a new trial. We were referred to Robertson v. John White & Son 1963 S.C. (H.L.) 22 where at p. 29 Lord Guest stated:

[11] In the present case the pursuer had not proved facts from which the necessary double inference could be drawn. The pursuer had not proved that Amy Thomson had caused the accident in circumstances where she had stumbled because she had fallen over the patient's feet, nor indeed was it possible to conclude that Amy Thomson had caused the accident by any sort of trip or stumble. However, in any event it had not been proved that any loss of balance by Amy Thomson had been due to careless conduct on her part. The pursuer's own evidence was all that she could rely upon and when giving her evidence she frankly conceded that she did not know how the accident had occurred.

[12] As a secondary point the defenders submitted that the award made by the jury in respect of the head of damage relating to future employment disadvantage was manifestly excessive. It was said that on the evidence no reasonable jury could have arrived at the amount of £19,100 for the said item of damages. The pursuer had been left with a permanent loss of strength and mobility in her left arm. This permanent disadvantage could not be disputed. Nor was it disputed that the pursuer was no longer able to carry out her pre-accident employment as a nursing assistant. However, the pursuer had injured her left arm and she is a right handed person. Since she returned to work she has been employed by her former employers, the defenders, in a different capacity to her pre-accident situation. She has been, and remains, employed in a position where she plans and organises the activities of the patients. She enjoys doing this alternative work and presently is not suffering any loss of wages. It is her intention to remain in her present job and it was contended by the defenders that there was no material in the evidence to suggest that her job is at any risk. She is not suffering any actual wage loss. Indeed the jury did not even have a figure for the pursuer's present earnings before them.

[13] Senior counsel for the pursuer on the damages point referred us to Hill v. Wilson 1998 S.C. 81. This case is to the effect that a broad approach is required in continuing employment disadvantage cases and that the court is not attempting to assess specific loss of job prospects but rather to make an award for the general diminution of job opportunity. The pursuer had enjoyed her work as a nursing assistant for a number of years and should be properly compensated for the fact that since the accident, and into the future, she is no longer eligible for such employment. The jury, therefore, had properly compensated her for the restricted employment prospects she now requires to suffer.

[14] On the main matter, namely the merits of the case, it was accepted by senior counsel for the pursuer that the pursuer's case was thin but he contended that nevertheless there was sufficient evidence to have entitled the jury to arrive at the verdict they pronounced. The pursuer's own evidence was that prior to the accident the patient was pulling her in a rightwards direction. Then Amy Thomson ran over and suddenly the pursuer was brusquely knocked to the left so that she fell on her left arm. The jury were entitled to conclude that it was Amy Thomson who had provided the momentum for this sudden change in the pursuer's situation and that therefore Amy Thomson must have been careless and clumsy on her arrival. The pursuer's evidence did not require corroboration if it were accepted by the jury. All the pursuer required to establish was that on a balance of probability the accident happened because Amy Thomson had been careless and therefore it was open to the jury to conclude that the most probable reason for the sudden change of direction in the forces affecting the pursuer was that Amy Thomson had tripped or stumbled or otherwise carelessly allowed herself to lose her balance.

[15] The evidence in this case, which the pursuer can pray in aid of her claim, in our view is of very narrow compass indeed. There may be some grounds which would have enabled the jury to conclude that Amy Thomson is not a reliable witness in matters of detail. However, even if the jury did not regard Amy Thomson as a satisfactory witness they could get little positive assistance from such a conclusion. In the evidence she gave in court Amy Thomson emphatically denied that she had tripped over the patient's feet (as the pursuer has averred) or indeed that she herself had knocked over the pursuer. There is indeed no direct evidence that Amy Thomson tripped or that she herself ever collided with the pursuer or for that matter with the patient. The pursuer very frankly accepts, apart from the fact that suddenly she was knocked in a contrary direction to her earlier movement, that she has no idea how the accident happened. Thus we are told that the jury must have relied on inference from the direction of the pursuer's fall. However, in our view an inference sufficient to establish the pursuer's case would not be justified, given the evidence. If in a normal stable situation Amy Thomson had suddenly arrived quickly, close to the pursuer and this had caused the pursuer to fall or in any event her arrival had coincided with the pursuer falling, then Amy Thomson might have been under an obligation to account for the fact that the pursuer had been knocked over upon her arrival. There might well be a prima facie inference that Amy Thomson had acted carelessly because the pursuer would have been secure on her feet before her arrival and persons acting with reasonable care do not normally cause other persons to fall. However, the point in this case is that the jury were not dealing with a normal and controlled situation. Indeed the contrary was clearly the case. It is beyond dispute that Sarah Davis was at some risk of falling and certainly Amy Thomson would have been justified in supposing that this risk existed. She was asked to come urgently to prevent such a fall. In the circumstances she can hardly be blamed for having taken prompt action in an effort to prevent an elderly lady suffering what could have been an injurious fall. Once Amy Thomson approached the pursuer and her patient there is no clear evidence as to what then happened. The pursuer had the patient staggering before Amy Thomson arrived. The arrival of a third party may have caused the patient to stagger in another direction and to collide with the pursuer. Indeed with three persons struggling, albeit briefly, to stabilise the situation it is of course possible that the patient or Amy Thomson tripped. The pursuer gave no indication in her evidence that she herself had tripped and therefore the jury were entitled to proceed on that basis. But there is nothing in the evidence to justify the inference that Amy Thomson tripped over the patient's feet nor that, if she did so, it was because she failed to keep a proper lookout. Even if in fact Amy Thomson had tripped over the patient's feet it does not follow, therefore, that she had been careless. We do not know the circumstances of any such event. We do not know how or when any limb, over which Amy Thomson might have tripped, got there. The patient as a result of her loss of balance may have suddenly thrust out a limb and this could have caused Amy Thomson to trip. The reality of the matter is that any view by the jury that Amy Thomson caused the accident by not keeping a proper look out is not a feature of the jury's assessment of the evidence but could only be founded on unwarranted speculation. We must emphasise that this is not a case where we are interfering with the jury's assessment of evidence. This is a case where, as a matter of law, there is simply not enough evidence to justify any reasonable jury, properly directed, in arriving at the verdict returned by the jury. We shal

[16] Senior counsel for the pursuer conceded that no further evidence on the merits was available but suggested that in such a situation his client should be given a chance to see if, in the course of a new trial, the evidence for the pursuer could be presented to better effect. This is not a case where through some irregularity in the procedure the full available evidence was not presented to the jury nor a case where the proceedings had been distorted because evidence which should have been excluded was allowed. This is a case where the issues were fully ventilated before the jury and we see no justification for allowing a further trial. We shall accordingly enter judgment for the defenders.

[17] With regard to the question raised on damages this need not be decided in view of our decision to enter judgment for the defenders. The Lord Ordinary's charge to the jury and speeches of counsel on the computation of damages were not before us and we therefore have some difficulty in understanding the amount of the award in the context of what the jury were asked to consider. In the circumstances we think that it would be preferable for us to express no view on the damages issue.

[18] In the whole circumstances the verdict of the jury should be set aside and the defenders assoilzied.